MOOLA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a criminal revision petition filed under Section 397/401 Cr.P.C. against the order dated October 9, 1986 passed by the learned SDM, Sikar, in Cr. Case No. 8/86.

(2.) THE proceedings under Section 145 Cr.P.C. were initiated as early as 1979 and it is unfortunate that since then the proceedings have not yet come to an end and in between the parties have been fighting litigation at various stages and have approached this court also. Both the parties are fighting for possession of the disputed agricultural land and have put up their claims in the proceedings pending under Section 145 Cr. P.C. in the court of learned Sub -Divisional Magistrate, Sikar.

(3.) LEARNED Counsel Mr. N.A. Naqvi appearing for the respondents has on the other hand urged that the learned SDM has committed no illegality in passing the impugned order, which is legal and valid in all respects. His contention is that in fact the impugned order has been passed in compliance with the order of this court dated 18 -8 -1986. He points out that this court in the above order had made clear that 'under the provisions to Sub -section (i) of Section 146 Cr. P.C. it is within the powers of SDM to withdraw the attachment at any time, if he is satisfied that there is no longer any likelihood of breach of peace with regard to the subject of dispute'. It is also pointed out that this court in its above order had in fact directed the SDM to dispose of the proceedings as soon as possible, but not later than four months in any case. Learned Counsel has pointed out that before passing the impugned order the SDM vide his order dated 12 -9 -1986 called for report of the Tehsildar and this report was produced by the Tehsildar on 15 -9 -1986 who went along with the Patwari. According to this report, the crop was standing and the non -petitioners, have been reported to be in possession. As per the report dated 7 -10 -1986, the standing crop on the disputed land was auctioned by Tehsildar for Rs. 7100/ - to Gyarsi one of the non -petitioners. This report was also given to the Patwari. The objections raised for withdrawal of the attachment by the petitioners were also heard and decided by the SDM vide his order dated 9 -10 -1986 and the attachment was withdrawn and possession was ordered to be officially given as per the rules to the persons from whom the possession was taken. Thereafter on 18 -10 -1986 the possession along with standing crop was handed over to the non -petitioner. Learned Counsel for the non petitioners has, therefore, pointed out that this court vide its order dated 18 -8 -1986 had itself observed that the SDM was empowered to withdraw the attachment at anytime under proviso to Sub -section (i) of Section 146 Cr.P.C. if he is satisfied that there is no longer any likelihood of breach of peace with regard to the subject of dispute. He also contends that under the relevant provisions, it was not laid down that the evidence should necessarily be recorded before an order with drawing the attachment is passed. In the case of Abdul Aziz v. Abdul Hakim and Ors. 1981 Cr. L.R. (Raj.) Page 162, it was observed that once an attachment is made it can be withdrawn either on completion of proceedings under Section 145 Cr. P.C. or under Section 146(1) Cr. P.C. on the ground that there is no longer likelihood of breach of peace regarding the property in dispute.